632 flies in electronics versus silicon motion technology. I'm going to address the issues in a different order than was in the briefing because I think that it may be most helpful to address the NTP issue because that you tell me we're in a record. You can test the heat-tab construction pre-determined data. Yes, Your Honor. If you look at a 582, Your Honor. And on a 582, we argued, this is the patent response, that the 267 makes it clear that the new block indicator is not replacement data. That is an argument not based on the facts of what the priority showing, but an argument based on what the 267 patent discloses. What does that mean? You're not answering my question. I believe I am your Honor
. For our point of view for claim construction, the issue is whether or not there is a dispute with the board over what the proper scope of the term pre-determined data is. Yes, I agree. We both use the words replacement data. But we believe that when the board's opinion, they did not use the replacement part of that. They only use data. And in doing so, it shows you in this section that we're very clear you're claiming that you're arguing that they misapplied their construction. I don't think so, Your Honor. I think there's a difference because there is a difference
. There is definitely a difference, Your Honor. We believe that if it was a misapplication, we wouldn't be discussing whether or not the 267 patent itself, and it's disclosure of what the term in data was, included or did not include a particular aspect. And again, the indicator is not something that's only in the prior art. The indicator in this case is in the patent itself. And so when we talk about the patent itself, and we describe what the patent itself allows for a particular claim term, and it's noted here for pre-determined data, what we are saying there is that the scope of the claim does not include a single but indicator that's outside the scope of the claim. And that is a classic claim construction argument, not an argument. So, I didn't argue that pre-determined data has to be the same size as the original data as a matter of claim construction. We did not argue that pre-determined data need to be the same size as a matter of claim construction, no, Your Honor
. In the 267 patent, additionally, on the patent, on the first page of the 267 patent, column 2, in the summary of the invention, and this language is important because it's not describing an embodiment. It actually says the invention of the 267 patent is directed to a data-accessing method, and that method prevents the host from receiving garbled codes. And if you look at the claim where this language appears, it is also a data-accessing method, and transmitting a single block indicator doesn't prevent the host from receiving garbled codes at all. It is not, it's an indicator of an erased block status. It's not predetermined data, it doesn't stop the garbled code problem. So between the clear disclosure of the patent, which says the invention solves the garbled code problem, and the differentiation between the use of these words in the claims and in the spec, we believe that the board erred in construing the term pre-determined data, replacement data, to effectively not require replacement, to merely be any other data beyond what's stored. It's not replacement data. Yeah
. Yeah, can I just move on to the seriousness analysis, because maybe all of this will be clarified with that. My understanding is that there's no dispute left at least, that Sharon discloses everything except for the transmitting step, pre-determining data. So then we're left with Bennett, and the board at 810 sites the quote from Bennett, that it is directed, and at the end it says, such systems return the erased status, and or erased data in response to the red operation from an erased block. So is the erased data and Bennett predetermined data? Yeah, that's the board's decision and its basis for finding that the- Can you just answer my question? Is the erased data? Yeah, pretty much. That wasn't a subject, I don't know your honor, because that wasn't the subject of the arguments below. The board's basis and the instituted grounds here rely on transmitting the ES bit and relying on that as being predetermined data, not the other sections that have to be quoted in there. And you can see that on page A13 at the top, although the FICIN is correct that the ES bit of Bennett can be an indicator, it can also serve as replacement data. The board's decision is that the ES bit is the replacement data that's being transmitted
. But can you still answer my question? I mean, but Bennett is cited as the prior art, and they cite the ES bit and or erased data in response to a red operation from the erased block. Why isn't that sufficient? I mean, you're just focusing on the bit part of Bennett, but if you focus on the erased data, why is that not treated? I have to hear it because they are recreating the erased data. Again, this wasn't the issue. I mean, the board cited, that's the garbled code. If you read that section of a block that is the erased section and you decode it under the guys of sharing, what you're going to get is garbled code. So you can't practice the invention by returning the garbled code that's exactly the opposite. That's why the board did not rely on that section because you're just practicing the essentially exactly the prior art. If you return the garbled erase data instead of, in this case, they say an indicator because that's what they have to rely on because it's not wouldn't be decoded in the way that the data would
. I could move on to NTP. Unless there are more questions about the combination in your honor. Is your reading of NTP really that whenever two references have overlapping elements, they can't be combined as a matter of law? No, you have the way you read NTP. No, you're not. What is your read of NTP? Our reading of NTP is in a situation where you have two references that are being combined. And the obviousness combination, in fact mapping to the elements, requires that you add to a reference something that is completely superfluous. That is where NTP kicks in. So in this particular example, Sharon does not disclose an element
. They had merely taken the Bennett ESBIT and replaced the ESBIT in sharing with the indicator and sharing with the indicator from Bennett, classic obviousness analysis under KSR. What they did here is because the claims also require... Where does it say that they replaced the indicator and sharing with the BIT from Bennett? They didn't hear you on. That's, I think, the problem. If they had done a classic.
.. What they couldn't say to the BIT from Bennett, I think that's why they get themselves into NTP problems. So you're saying that they replaced the indicator in sharing with BIT from Bennett? That's not correct. Yeah, I'll send you up a hypothetical, Your Honor. If they had done that as part of an analysis, that had been only they had done. And then the overlap in the references wouldn't have made a difference. But because here what they did was they added the ESBIT of Bennett, but because the claims also require another indicator. And they couldn't use the ESBIT, which is itself an indicator
. They couldn't use that for the indicator also in the claims because they had changed its function. They used the fly-hag from sharing. They used the fly-hag from sharing. But what? And they said that the BIT from Bennett was predetermined data. They did your Honor, but importantly, they never said in their holding that the ESBIT changed. It is still the ESBIT, it's still an indicator. It's just been termed to be for purposes of mapping replacement data. So what we get there is a situation where the EIT, there is no function anymore remaining in having the Sharon indicator
. Everything the Sharon indicator does and the borders and dispute this can be done by the ESBIT. So from a technological standpoint, it is, as NTP explains, it's the height of hindsight for when you're mapping elements, you're claiming to take something which in a real system would have absolutely no function at all because it had been completely replaced. And to add that in merely for the purposes of mapping the claims. And that's the situation in this case where it's not merely an overlap. It's that they have to rely on a completely meaningless functionality in the system in order to get to the claims. And when a person is not a raw, when doing a combination, a person wouldn't do that because it's the definition of hindsight when the piece has no function in a real system anymore. So it's not completely proportional. And I have my light on the other side. Okay, why don't you have one on the other side? Please, the court. I don't believe that there is a claim construction dispute that can be raised here on the record below. And its preliminary response, Fieson, argued that predetermined data is replacement data stored before user operation. The board and its institution decision agreed that it was replacement data, but declined to say that it was stored before user operation. At footnote 4 of page 13 of Fieson's brief, they're not challenging the fact that it's stored before user operation was not part of the claim construction. Fieson down below never proposed a claim construction that said replacement data must be larger than a bid. They never proposed a construction. They just be admitted that
. Okay, why don't you have one on the other side? Please, the court. I don't believe that there is a claim construction dispute that can be raised here on the record below. And its preliminary response, Fieson, argued that predetermined data is replacement data stored before user operation. The board and its institution decision agreed that it was replacement data, but declined to say that it was stored before user operation. At footnote 4 of page 13 of Fieson's brief, they're not challenging the fact that it's stored before user operation was not part of the claim construction. Fieson down below never proposed a claim construction that said replacement data must be larger than a bid. They never proposed a construction. They just be admitted that. And they also never proposed a construction that said that data must be the same size. They also never proposed a construction that said the Garbold code problem must be solved in the host. I agree they made those arguments with respect to application, but they did not make it with respect to claim construction. Thus, there was nothing to appeal with respect to claim construction. We know this from Fieson's own words and its patent order response. At A564, they say first, the combined system would not practice the predetermined data limitation as construed by the board. And at A578, which is what the board relied on when it said Fieson agreed with them. Fieson says in the institution decision, the board properly recognized that the claimed predetermined data must be replacement data
. And they also never proposed a construction that said that data must be the same size. They also never proposed a construction that said the Garbold code problem must be solved in the host. I agree they made those arguments with respect to application, but they did not make it with respect to claim construction. Thus, there was nothing to appeal with respect to claim construction. We know this from Fieson's own words and its patent order response. At A564, they say first, the combined system would not practice the predetermined data limitation as construed by the board. And at A578, which is what the board relied on when it said Fieson agreed with them. Fieson says in the institution decision, the board properly recognized that the claimed predetermined data must be replacement data. However, in applying this construction for the system of sharing modified to use an ESBIT, the board made an error. So I think it's clear that this is subject to the substantial evidence standard and not denoted review. Fieson cannot meet that standard with respect to the obvious accommodation. Sharon discloses a flash memory device having a flash controller that executes flash management software that's a finding of the board at A9. The board also founded A8-9 that Sharon's invention was directed to reducing error rates. Yet Sharon does explicitly say you can set a flag or an indicator to indicate a new block. However, Sharon doesn't tell you what you do when you read that indicator. They say that's in the prior art, looked to the prior art logic
. However, in applying this construction for the system of sharing modified to use an ESBIT, the board made an error. So I think it's clear that this is subject to the substantial evidence standard and not denoted review. Fieson cannot meet that standard with respect to the obvious accommodation. Sharon discloses a flash memory device having a flash controller that executes flash management software that's a finding of the board at A9. The board also founded A8-9 that Sharon's invention was directed to reducing error rates. Yet Sharon does explicitly say you can set a flag or an indicator to indicate a new block. However, Sharon doesn't tell you what you do when you read that indicator. They say that's in the prior art, looked to the prior art logic. That's at A9. The prior logic includes Bennett. Bennett and Sharon are both patents filed by a memory company, Sandisk, the related art. The board found you could properly combine these. And what it did is it said, how does Bennett deal with the new block? It sends back a status bite, for example, the ESBIT and or the erase data. But it never focused on the erase data aspect. The board did not focus on the erase data. And you have one paragraph and a brief
. That's at A9. The prior logic includes Bennett. Bennett and Sharon are both patents filed by a memory company, Sandisk, the related art. The board found you could properly combine these. And what it did is it said, how does Bennett deal with the new block? It sends back a status bite, for example, the ESBIT and or the erase data. But it never focused on the erase data aspect. The board did not focus on the erase data. And you have one paragraph and a brief. We did make the argument down below that the erase data could be replacement data, the erase data plus the ESBIT because it's an andor or the status bite itself. But the board did focus on the ESBIT, correct, in their holding. And as far as the NTP issue goes, I don't think this is a situation where we need two networks and we're relying on one network from one and one network from another. That was the NTP case. Here, we have the flag cell and Sharon. Sharon doesn't tell you what to do when you read that flag cell. Bennett tells you you can transmit back a status bite. It includes, for example, the ESBIT
. We did make the argument down below that the erase data could be replacement data, the erase data plus the ESBIT because it's an andor or the status bite itself. But the board did focus on the ESBIT, correct, in their holding. And as far as the NTP issue goes, I don't think this is a situation where we need two networks and we're relying on one network from one and one network from another. That was the NTP case. Here, we have the flag cell and Sharon. Sharon doesn't tell you what to do when you read that flag cell. Bennett tells you you can transmit back a status bite. It includes, for example, the ESBIT. That's all the boards relying on is the ability to transmit back to the host. And for those reasons, we would ask that the boards decision be affirmed. Are there any questions? Thank you, Your Honours. I'll be fairly quick. I'll be in five minutes. We don't argue, we don't dispute that we also argue the application. And, above all, we argue both that the claim had the wrong scope. We also argue the application
. That's all the boards relying on is the ability to transmit back to the host. And for those reasons, we would ask that the boards decision be affirmed. Are there any questions? Thank you, Your Honours. I'll be fairly quick. I'll be in five minutes. We don't argue, we don't dispute that we also argue the application. And, above all, we argue both that the claim had the wrong scope. We also argue the application. And pointing to portions of our brief, we argued application. Again, we're not appealing the application. We're only appealing the scope of the claim. For, with note to the erased data, that wasn't the basis for the board's decision. Under the Chenerville, it's not a sufficient ground to affirm their decision. As I noted, there is a civility-speeded topic. As I recall, they tried to raise that issue at the board. And it was some subject of a request for reconsideration that was denied
. And pointing to portions of our brief, we argued application. Again, we're not appealing the application. We're only appealing the scope of the claim. For, with note to the erased data, that wasn't the basis for the board's decision. Under the Chenerville, it's not a sufficient ground to affirm their decision. As I noted, there is a civility-speeded topic. As I recall, they tried to raise that issue at the board. And it was some subject of a request for reconsideration that was denied. The board didn't need to go there because it disagreed with your claim. Your newly revised claim construction. It's possible, I don't know. I believe the board wouldn't have gone there because the petitioner saw it. They put it in a petition and they saw it in a request for reconsideration to reconsider the scope. And that was denied. So I believe that it would be outside the scope of what they could have argued. So if it was remanded back, I don't believe it would be within the scope of what the case could be considered
. The board didn't need to go there because it disagreed with your claim. Your newly revised claim construction. It's possible, I don't know. I believe the board wouldn't have gone there because the petitioner saw it. They put it in a petition and they saw it in a request for reconsideration to reconsider the scope. And that was denied. So I believe that it would be outside the scope of what they could have argued. So if it was remanded back, I don't believe it would be within the scope of what the case could be considered. It should be considered. I haven't mentioned it yet, but I think it is significant to point out the significant teaching away. I do know that it's a fact issue here, and that is obviously reviewed with substantial evidence. But even the petitioner doesn't try to defend the board's rationale for why it found that there wasn't teaching away. The Sharon reference many times, over eight times, says that a significant part, an eventive part of the patent, is to not reduce the size of the data. The board in dismissing that argument said that the scoters in Sharon were directed to compression and they need to consider them. But if you look at the Sharon reference, there are numerous statements about the need to not reduce the size of the data that have nothing to do with compression. And trying to defend the board's judgment, like I said, the petitioner doesn't argue the same grounds as the board, but they try to argue is that separate distinction that discussion in Sharon about don't shrink the size of the data is somehow only connected to written blocks and not to new blocks
. And I think that shows that on the merits of looking at Sharon, there isn't really any evidence to establish that the limitation and the constant teaching is restricted to just the compression, because it used so many places. And it's such a clear statement of the purpose of the invention is to reduce the size of the data. Now, there are any more questions, John? Thank you. We thank both Councilor and Mrs. Submit